Affirmative Action Cases Could Broadly Impact College Admissions

March 26, 2013

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The public has somewhat mixed feelings about affirmative action. According to a 2009 Pew Research Center survey, African-Americans and Latinos favor preferential treatment to improve the position of minorities, but whites do not. At the same time, however, the public, regardless of race, has expressed broad support for affirmative action designed to help blacks, women and other minorities get better jobs and education. The study looked at affirmative action in general, not specifically race-based affirmative action.

The Advancement Project, a civil-rights advocacy group, filed a "Friend of the Court" brief in favor of affirmative action. They say it's the high court's job to uphold the practice not only to make up for past wrongs, but precisely because it has become a contentious issue that has made classes and campus life difficult for minorities.

"UT's present commitment to a meaningful black and Latino presence on campus cannot be fully comprehended or assessed without attention to the ways that history lives on in the present at UT, affecting the social climate on campus and the dynamics inside the classroom," it reads.

According to Bertrall Ross, an assistant professor at the University of California-Berkeley's law school, the Texas case could lead to several outcomes. The Court could overturn the decision and suggest that race cannot be used in admissions decisions, it could say that race can be used as a factor but not carry too much weight, or the justices could say that the use of race in the case was fine and universities can continue to use race as a key factor.

Ross thinks the last possibility is unlikely, and that the first is unlikely given that the Court decided to hear the Michigan case, which leaves the more nuanced middle option.

Ross thinks universities might only be allowed to use race as one factor out of many in a "holistic" look at applicants. Things like personal statements and interviews would also need to be considered. Texas may say they did that, but the justices might indicate they don't think the university went far enough.

"My sense," he said, "is that they will say race can be used, but in the Texas context, it was used too much."

But Susan Low Bloch, a Georgetown University law professor, said she wouldn't read much into the Court taking the Michigan case. It only takes four justices to grant a case, and she thinks there are four opposed to affirmative action who are determined to keep hearing such cases in an attempt to limit the practice.

Bloch thinks a 4-4 tie is a definite possibility, since Justice Elena Kagan has recused herself. A tie would mean that the lower court ruling that sided with the Texas program would hold. But Bloch also thinks a ruling that finds the use of race in the Texas program and others like it unconstitutional, but upholds affirmative action in other instances, is likely.

Basically, since the practice of admitting the top 10 percent already gives the school numerical diversity, it's harder to justify the need to consider race for other applicants, she said. So the ruling might limit the use of race for schools with similar practices, but preserve affirmative action for schools that aren't already diverse.